On April 29, 2016, the Office of Personnel Management (“OPM”), which sets policy on federal government hiring procedures, issued a proposed rule that would prohibit an agency from inquiring about the criminal history of an applicant for Federal employment until after a conditional offer of employment has been made.

The Proposed Rule

Currently, federal agencies are permitted to begin determining an applicant’s suitability for employment at any time during the hiring process. Many agencies require an applicant to complete a “Declaration for Federal Employment” (OF-306) form which contains a variety of questions concerning the applicant’s background, including several questions about the applicant’s criminal history.

The proposed rule would prohibit agencies from making specific inquiries concerning an applicant’s background of the sort asked on the OF-306’s “Background Information” section or other forms that are used to conduct “suitability investigations for Federal employment,” unless the agency has first made a conditional offer of employment to the applicant.

If a hiring agency has a business need to obtain information about the background of an applicant earlier in the hiring process, the agency may request an exception from the OPM. Exceptions will only be granted when the agency demonstrates “specific job-related reasons the agency wishes to evaluate suitability earlier in the process or consider the disqualification of candidates with criminal backgrounds or other conduct issues from particular types of positions.”

The proposed rule is the most recent development in the “ban the box” movement that has been taking place nationwide, with many states, cities, and counties requiring employers to delay criminal history inquiries until later in the hiring process. The proposed rule is also consistent with steps taken by other federal agencies such as the Office of Federal Contract Compliance Programs (“OFCCP”) and the Equal Employment Opportunity Commission (“EEOC”). Both agencies have previously published information on the use of arrest and conviction records, which Leech Tishman wrote about here.

Leech Tishman’s Employment Practice Group will continue to monitor the proposed rule and will provide additional guidance for compliance as necessary.